DHS Further Tightens Asylum Work-Permit Rules

Removing incentives for frivolous asylum filings, and aligning employment and asylum eligibility

By Andrew R. Arthur on June 24, 2020
  • On Friday, DHS will publish a Final Rule amending the regulations governing applications for employment authorization (work permits) by aliens with pending asylum claims — known as (c)(8) work authorization.
  • This rule will limit frivolous asylum claims, thus speeding the issuance of protection to aliens with meritorious applications for protection.
  • Specifically, the Final Rule will expand the period of time that an asylum applicant must wait before requesting (c)(8) authorization from 150 days to 365 calendar days.
  • It will also bar aliens who entered the United States illegally — with exceptions — from receiving (c)(8) authorization.
  • The Final Rule aligns the bars to (c)(8) authorization for criminal aliens with the criminal bars to asylum in the INA.
  • Also, consistent with the "one-year bar" to asylum relief, the Final Rule prohibits aliens who have failed to apply for asylum within one year of their last entry into the United States from receiving (c)(8) authorization, again with exceptions. This bar does not apply to (c)(8) applications by aliens who were UACs when they initially applied for asylum.
  • It also clarifies when an alien may apply for (c)(8) authorization; limits the period of employment authorization validity to a maximum of two years; and automatically terminates (c)(8) authorization when the applicant's asylum denial is administratively final.
  • The Final Rule also makes clear that the issuance of employment authorization to aliens required to apply for such authorization generally is within the discretion of USCIS.

My last post analyzed a Final Rule issued by the Department of Homeland Security (DHS) that eliminated regulatory requirements on U.S. Citizenship and Immigration Services (USCIS) in adjudicating applications for employment authorization (work permits) by aliens seeking asylum (known as "(c)(8) authorization"). On Friday, DHS will issue a separate Final Rule further modifying the regulations governing (c)(8) applications. It extends the period of time asylum applicants must wait to apply for such authorization, and aligns the bars to (c)(8) authorization with criminal and filing bars to asylum in the Immigration and Nationality Act (INA). The changes better reflect congressional intent, and will deter fraudulent filings while reducing inordinate delays.

Asylum applicants are not, by law, entitled to (c)(8) authorization. Rather, Congress gave DHS significant leeway in the INA in adjudicating such authorizations, while subjecting (c)(8) applications to rigid filing requirements. Specifically, under section 208(d)(2) of the INA, "such authorization may be provided under regulation by the Attorney General" (now, DHS, emphasis added). And Congress made clear therein that aliens must wait at least 180 days before receiving (c)(8) authorizations, although it did not set a limit on DHS's authority to extend that 180-day bar.

The 180-day restriction was included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which also permanently barred aliens who had filed frivolous asylum applications from any benefit under the INA, and created a requirement that aliens file asylum applications within one year of entry. The clear implication of these provisions was to eliminate incentives for removable aliens to file non-meritorious asylum applications simply to live and work in the United States.

Congress's restrictions on applications for (c)(8) work authorization in IIRIRA were subsequently implemented by regulations issued by the former Immigration and Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR) — both of which were then in the Department of Justice (DOJ) — in March 1997.

First, the current version of 8 C.F.R. § 274A.12(c)(8) allows asylum applicants to request employment authorization if their applications have not been adjudicated within 150 days of filing. Any alien who is granted employment authorization (including (c)(8)) is issued an Employment Authorization Document (Form I-766, or "EAD") reflecting that grant.

The process by which aliens may apply for, and U.S. Citizenship and Immigration Services (USCIS) may grant, (c)(8) employment authorization is contained in the asylum regulations at 8 C.F.R. § 208.7(a), which, as currently written, gives USCIS 30 days to adjudicate those applications. As I explained in my last post, that 30-day deadline will be removed from the regulation, effective August 21, 2020, but Friday's Final Rule will make additional amendments to that provision, effective August 25, 2020.

The Final Rule to be published Friday will expand that 150-day waiting period to apply for (c)(8) authorization (which is contained in both of the foregoing regulations) to 365 calendar days, effective for initial EAD applications filed 60 days from the date of that publication (currently August 25, 2020).

Second, in addition to extending the time frame within which aliens are barred from applying for (c)(8) authorization, the Final Rule also sets bars on the granting of such authorization to certain aliens, which are largely placed in the amended 8 C.F.R. § 208.7.

Under the final rule, aliens who have entered illegally between the ports of entry will be ineligible for (c)(8) work authorization unless they: present themselves to DHS (in this case, usually a Border Patrol agent or member of the Coast Guard) within 48 hours of entry; indicate an intention to apply for asylum; and otherwise have "good cause" (such as a need for immediate medical treatment or flight from imminent harm) for such illegal entry. The amended regulation makes clear that "such good cause does not include the evasion of U.S. immigration officers, convenience, or for the purpose of circumvention of the orderly processing of asylum seekers at a U.S. port of entry."

Respectfully, this is a narrower limitation than DHS can and should have placed on eligibility for (c)(8) authorizations (it could have barred illegal entrants entirely), but the amendment will still eliminate (c)(8) authorization for aliens who evade detection and fall back on asylum only if they are caught, and (as noted) those who do so simply to avoid having to wait to seek asylum at the ports. That bar only applies to aliens who enter illegally on or after August 25, 2020.

In addition, pursuant to that rule, aliens are ineligible for (c)(8) authorization if they have failed to apply for asylum more than one year after their last entry to the United States. This aligns with the restrictions on asylum eligibility in section 208(a)(2)(B) of the INA, which bar such claims absent "the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within" that one-year period (an exception in section 208(a)(2)(D) of the INA).

This bar to (c)(8) eligibility applies only to aliens who file untimely asylum applications on or after August 25, 2020.

Again, consistent with the asylum provisions in section 208 of the INA, under the Final Rule, an alien who fails to apply for asylum within that one-year period may still be granted (c)(8) authorization if a USCIS asylum officer (AO) or EOIR immigration judge (IJ) finds that the alien falls within the exceptions to the one-year bar.

Additionally (and notably), the one-year bar does not apply to the untimely filing of an initial asylum application by an unaccompanied alien child (UAC) — although the fact that such a "child" would be seeking employment authorization itself reflects that many (if not most UACs) are not infants or toddlers, but rather minors (in the legal sense) on the verge of adulthood.

This exception will primarily deter aliens who have already entered illegally (as noted, the illegal-entry bar applies prospectively from August 25, 2020) or who enter legally as nonimmigrants and overstay from filing frivolous applications for asylum in the hopes of obtaining (c)(8) authorization.

Similarly, the Final Rule includes criminal bars to eligibility for (c)(8) work authorization that are consistent with the criminal bars to asylum eligibility in section 208 of the INA and its implementing regulations.

Specifically, pursuant to section 208(b)(2)(A) of the INA, aliens who have been convicted by a final judgment of a particularly serious crime (including aliens who have been convicted of aggravated felonies), and aliens believed to have committed a serious non-political crime outside of the United States are barred from receiving asylum. By regulation, asylum applicants bear the burden of proving that they have not been convicted of or committed such crimes where evidence proves they have.

The current version of 8 C.F.R. § 208.7(a)(1) already bars aliens who have been convicted of aggravated felonies from obtaining (c)(8) authorization. There are no similar restrictions to (c)(8) authorization for other aliens who are barred from asylum on criminal grounds.

Correcting this oversight, the Final Rule bars aliens from (c)(8) authorization if they have been convicted of particularly serious crimes or committed serious non-political crimes abroad on or after August 25, 2020. To enforce this bar (and to verify the identity of the applicant), aliens filing initial applications for (c)(8) authorization or for renewals of their EADs after that date will be required to provide biometrics for a background check.

Plainly, if an alien is not eligible for asylum, it makes no sense for the alien to be granted (c)(8) authorization. Bars to employment authorization in the Final Rule that reflect those in the INA are so commonsense, it is curious that it has taken more than two decades to make the changes. And, the biometric requirement will ensure that criminal aliens are caught in the screening process.

The criminal-alien bars are not as broad as they could be — yet. As I noted in my analysis of the Notice of Proposed Rulemaking (NPRM) for these regulations in November:

[C]ertain other, criminal asylum applicants would be ineligible for (c)(8) authorization. This would include aliens who have been convicted of ... any felony in the United States ... ; or have been convicted in the United States of certain public-safety offenses. Those public-safety offenses include crimes involving "domestic violence or assault ... , child abuse or neglect; possession or distribution of controlled substances; or driving or operating a motor vehicle under the influence of alcohol or drugs, regardless of how the offense is classified by the state, local, or tribal jurisdiction."

Those additional criminal bars to (c)(8) eligibility were not included in the Final Rule. That rule notes, however, that DHS and DOJ issued a Joint Notice of Proposed Rulemaking on December 19, 2019, which, if finalized, would amend the bars to asylum eligibility by including criminal offenses similar to those in the NPRM. Should those regulatory amendments be finalized, such offenses would also bar the alien from (c)(8) authorization pursuant to the amended regulations in Friday's Final Rule.

Third, the Final Rule amends the regulations to clarify when the 365-day waiting period begins, and how long (c)(8) authorization lasts.

Because that 365-day period begins when USCIS or the immigration court receives the asylum application, the filing of that application is a critical date. Often, however, aliens file incomplete or skeletal asylum applications that require amendments or supplements, or delay adjudication of their asylum applications (for example, by not appearing for their asylum interviews), in order to run the clock to apply for work authorization, or to extend their presence (lawful or unlawful) in the United States.

To ensure that the asylum application is complete and not unduly hindered for purposes of commencing the 365-day period, the Final Rule provides that delays that are requested or caused by the asylum applicant and that are outstanding or have not been remedied by the applicant on the date that the alien files an application for an EAD will result in denial of the initial (c)(8) application.

Moreover, under the Final Rule, a (c)(8) EAD is valid for no more than two years, and employment authorization will terminate if the AO denies an affirmative asylum application. If the AO refers the application to an IJ for review in removal proceedings, authorization will continue (subject to renewal), and if the IJ denies the application, for 30 days thereafter to give the applicant the opportunity to appeal to the Board of Immigration Appeals (BIA).

Where such an administrative appeal is filed, (c)(8) authorization will continue through review by the BIA and any remand to the IJ (again, subject to renewal). Authorization terminates, however, if the BIA dismisses the appeal. Employment authorization is not available during consideration of an alien's petition to review by a circuit court, or while that review is pending, unless the case is remanded by the circuit court. Logically, the rule explains:

DHS believes that restricting access to (c)(8) employment authorization during the judicial review process is necessary to ensure that aliens who have failed to establish eligibility for asylum during two or three levels of administrative review do not abuse the appeals processes in order to remain employment authorized.

And, needless to say, an application for (c)(8) authorization must simply be denied if the asylum application itself is denied by the AO or IJ during the 365-day waiting period.

Fourth, the amendments to 8 C.F.R. § 274a.12 in the Final Rule make clear that an alien who is paroled into the United States following a positive credible fear determination is only eligible to apply for a (c)(8) authorization, and not for employment authorization under the provision therein governing aliens who have been paroled generally — 8 C.F.R. § 274a.12(c)(11). Significantly (and by contrast), that provision renders parolees immediately eligible for an EAD.

Fifth, the Final Rule amends the regulations generally to make clear that the granting of employment authorization to aliens who must apply for it (in contrast to aliens who receive employment authorization incident to their status, automatically, as it were, such as lawful permanent residents, refugees, asylees; and aliens who receive employment authorization incident to their status with specific employers, such as H-1Bs and treaty traders) is within the discretion of USCIS.

As the Final Rule explains:

Employment authorization for asylum seekers is not an entitlement but an ancillary benefit that Congress authorized and entrusted to the Secretary to decide if employment authorization should be granted, and if so under what terms and conditions. Through this rule DHS seeks to separate the asylum application process from employment authorization as a deterrent to aliens who are not bona fide asylum seekers, but are simply abusing the asylum process solely to remain and work in the United States.

Such a deterrent will allow truly meritorious claims to be adjudicated more quickly — and ideally within the 365-day bar to filing an application for a (c)(8) employment authorization application.

Or, as Joseph Edlow, the USCIS deputy director for policy stated in a Monday press release: "The reforms in this rule are designed to restore integrity to the asylum system." While that might be a high bar for the Final Rule to clear, that rule is a start.